By the people, for the people? Community participation in law reform: summary report, Justice issues paper 14
(
2011
)
Cite this report

Strategies

On the basis of these findings, it is clear that a multi-pronged approach that mirrors the multi-dimensional nature of law reform capability is required. Accordingly, we propose the following five broad approaches to help overcome the systemic constraints to law reform and enhance the law reform capability of the general public, disadvantaged people, and CSOs:

Provide the public and stakeholders with adequate time for law reform consultation. Timeframes and timing of law reform consultation should be commensurate with the significance of the issue, its breadth and complexity, as well as the participation needs of stakeholders.

Ensure that the information in law reform consultation documents is accessible.

Improve public access to information about law reform, including information about opportunities to participate.

Enhance the capacity of CSOs to participate and represent their constituencies, particularly disadvantaged communities, in law reform.

Ensure that the scope and aims of law reform consultation processes are clear to participants, and that processes match the participation needs of affected stakeholders. Where appropriate, tailor consultation processes in line with the specific participation needs and expectations

Specific strategies associated with these five approaches are summarised in Table 1.

By the people, for the people? also identifies possible improvements to the transparency, accountability and rigour of law-making practices, as well as broader institutional reforms that may provide for more effective public and stakeholder participation opportunities.

Strategies to enhance public and stakeholder participation will, in large part, depend on two related factors. First, effective participation for individuals is contingent upon having functional literacy and being able to meet law reform literacy needs within timeframe constraints. Second, effective participation opportunities are contingent on government and advisory bodies being able to invest time and resources in the provision of consultation processes that are capable of meeting the diverse participation needs of affected people and interests.

The proposed strategies, however, involve significant commitment and resources, some of which may not be realistic in the shorter term. Investment to improve the law reform capability of communities is, however, an investment in robust democracy. Further, unless law reform adequately considers disadvantaged and socially excluded groups — including consideration of their particular participation needs — there is a significant risk that legislative reform may exacerbate or reproduce disadvantage.

Although the strategies proposed are focused on New South Wales, their relevance — and especially the findings on the constraints stemming from a lack of functional and law reform literacy — is likely to extend to other jurisdictions and levels of government. Indeed, a consequence of Australia’s federal system of government is that fragmentation of institutional responsibilities heightens the law reform literacy demanded of Australians.

Table 1: Strategies to enhance the effectiveness of public and stakeholder participation opportunities in New South Wales law reform

Possible broad approach

Rationale

Strategies

1.

Provide public and stakeholders with adequate time for law reform consultation. Timeframes and timing of law reform consultation should be commensurate with the significance of the issue, its breadth and complexity, as well as the participation needs of stakeholders.

Time constraints adversely affect people’s capacity to participate in law reform, and disproportionately affect the capacity of people with less functional literacy, law reform literacy and access to resources. CSOs need time to inform and consult constituencies, and to formulate law reform submissions. Law reform consultation providing insufficient time for participants risks being perceived as being a ‘sham’ or ‘non-genuine’, potentially eroding confidence in government and the inclination to participate in future.

•Provide advance notice of consultation (advance notice may depend on participants’ or stakeholders’ resources, the nature of their disadvantage, and their level of functional law reform literacy).•Where circumstances prevent or limit adequate consultation during the formulation of law reform submissions, opportunities can be provided at a later stage of the law reform cycle, such as during implementation and/or review.

2.

Ensure information in law reform consultation documents is accessible

Consultation documents should not assume participants have sophisticated levels of literacy, knowledge, or have law reform experience or expertise. Information about the issue, the law reform process, and the purpose of the consultation, communicated in accessible formats and language, enhances the capacity of the public, disadvantaged people, and the CSOs who represent them, to participate.

•Recognise that producing law reform consultation documents in plain and accessible language is a sophisticated communication task, for which government standards need to be developed. •Information should, at a minimum, set out in accessible language an overview of the particular law reform process and the legal issues and implications (including practical implications) of the proposed changes. Further references should be provided for those who are interested.•Where circumstances necessitate, it may be appropriate to produce multiple documents in alternate formats that better meet the needs of diverse participants: for example, a detailed version that extensively canvasses the legal and policy issues; a plain language version; and versions tailored and accessible to particular stakeholders.

3.

Improve public access to information about law reform, including information about opportunities to participate.

Lack of knowledge about participation opportunities is a fundamental barrier to people participating in law reform. The volume of law reform activity, fragmented across different law-making institutions, makes it difficult for stakeholders and the general public to keep abreast of particular law reform issues.

Providing a ‘one-stop shop’ for information about law reform activities across law-making institutions may help people monitor law reform and promote social inclusion.

•Develop and maintain an up-to-date centralised website that acts as a portal to coordinate and manage information about the range of law reform activities across the New South Wales Government, as well as associated participation opportunities where they arise. The website should include information about the law reform system, the role of different institutions, and how the public is able to participate. This would make it easier for people to navigate both to and through law reform. An advantage of a centralised online resource is that periodic updates can be made, which would be particularly useful given the myriad — and at times rapid — changes that can occur in law reform. In addition, the website could enable people to subscribe to information updates about particular law reform issues. •Fund community education, information programs, and plain language resources to promote general understanding of the political and legal systems (for example, how to access legislation and Bills of parliament), law reform processes, governance institutions, and how the public can get involved in law reform.•Continue to promote and strengthen civics education in schools. •Resource CSOs to provide information resources that are appropriately tailored to the particular needs of disadvantaged communities (such as Indigenous communities, people from non-English-speaking backgrounds, people with disability, young people, older people and other socio-economically disadvantaged communities).

4.

Enhance the capacity of CSOs to participate and represent their constituencies, particularly disadvantaged communities, in law reform.

But for participation through or representation by CSOs, most people — and particularly disadvantaged people — are excluded from law reform. CSOs perform a unique and critical role in bridging constituents with governance institutions. CSOs’ ability to reach particular groups should be valued on the basis that they act as representatives and/or as experts in law reform, have on-the-ground knowledge of the operation or impact of laws on specific communities, and can bring otherwise unheard voices to a law reform process.

•Support CSOs to attract and retain people with law reform skills, particularly CSOs who represent marginalised and disadvantaged people and groups.•Fund the law reform work of CSOs, including community legal centres, where appropriate, particularly where it enhances the ability of socially and economically disadvantaged people to contribute information that would not otherwise be available to government. •Support the important information, networking, communication, translation and interpretation roles peak CSOs perform for their member organisations.•Support and promote opportunities for collaboration between legal and non-legal CSOs for the purposes of law reform work. •Support capacity building programs that aim to increase the ability of individuals and the CSO sector to undertake systemic law reform advocacy. •Support and strengthen pro bono relationships that facilitate CSO access to legal assistance. (Given the time constraints of law reform, pro bono legal assistance is more likely to be effective when there is a prior existing relationship between organisations.)•Promote policy or research partnerships between human services sector CSOs and tertiary institutions.•Harness CSOs’ on-the-ground knowledge of the effects of legislation, particularly where they represent or have knowledge of hard-to-reach disadvantaged or marginalised communities.

5.

Ensure the scope and aims of law reform consultation processes are clear to participants, and that processes match the participation needs of affected stakeholders. Where appropriate, tailor consultation processes to the specific needs and expectations of stakeholders

To maintain public confidence in law reform and its consultation processes, stakeholder expectations of the process need to be appropriately managed. Non-government stakeholders should understand that consultation does not mean ‘shared decision-making’ and does not necessarily mean that particular options will be pursued.
The provision of effective participation opportunities also has to consider the law reform capabilities of the diverse people and groups potentially affected by reform proposals. This will increase the likelihood of more complete information being collected and will help inform executive decision-making.
The capacity of government agencies and public officials to conduct law reform consultations that are tailored to the needs of the individuals and/or CSOs should be supported and enhanced.

•Law reform consultation documents should provide a clear statement about the purpose and intent of the consultation, what type of information is being sought and in what form, how the information submitted will be considered, what may happen after the information has been submitted, details concerning any likely subsequent participation opportunities, as well as details outlining what needs to happen before legislation can be enacted. Such information should seek to clarify expectations concerning the scope of the consultation and the subsequent law-making process.•Increase the capacity of public officials to reach out, engage and communicate with members of the public, stakeholders, communities and CSOs when undertaking law reform. •Engage relevant stakeholders when designing law reform consultation processes. •Engage experts to advise on designing the most appropriate law reform consultation methods for particular disadvantaged and marginalised communities. •Where law reform affects diverse interests, it may be appropriate to employ multiple consultation methods, using different modalities (for example, phone, internet, face-to-face, or other). While technology can facilitate wider reach to members of the public, this may not be so with respect to marginalised and disadvantaged people and communities.